This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In case distinct portions of the land are conveyed to different persons by simultaneous and similar conveyances, and no one of such transferees assumes the mortgage, each portion is liable for a part of the mortgage debt, proportioned to the value of that portion of the land, and, if one of such transferees pays an amount greater than his proportional share, he is entitled to contribution from the owners of the other portions.33
In case one or more of such transferees assume the obligation of paying the mortgage, or take "subject to" the mortgage, and the others do not do so, the part or parts conveyed to the former would be primarily liable, and those conveyed to the latter but secondarily so, as between the transferees themselves. Since the parts of the land in the latter's hands would be only secondarily liable as against the transferor's personal liability, while the parts in the former's hands would be primarily liable as against the transferor's personal liability,34-35 the parts which are thus secondarily liable as against the transferor's personal liability would necessarily be secondarily liable as against the other parts, which are primarily liable as against that personal liability.
Much more frequent than the simultaneous transfer of portions of the mortgaged property to different persons, is the case of a transfer by the original mortgagor, or by a subsequent owner of the whole property, of part of the property to another, retaining the residue, or subsequently transferring it to another.
33. Pomeroy, Eq. Jur. Sec. 1222; Bailey v. Myrick, 50 Me. 171; Chase v. Woodbury, 6 Cush. (Mass.) 143; Hall v. Morgan, 79 Mo. 47; Brown v. Simons, 44 N. H. 475; Swain v. Perine, 5 Johns. Ch. (N. Y.) 482, 9 Am. Dec. 318; Alley v. Rogers, 19 Grat, (Va.) 366.
So, if one tenant in common pays a greater part of the mortgage debt than is proportioned to his interest in the land, he is entitled to contribution from the other tenants in common. Simpson v. Gardiner, 97 111. 237; Lyon v. Robbins, 45 Conn. 513.
34-35. Ante, Sec.Sec. 622, 623.
When one who has executed a mortgage upon land to secure his debt, transfers a part of the land, retaining the residue, it is equitable that, in so far as he is under an obligation to his transferee to relieve the land transferred by paying his debt,36 the part retained by him should be subjected to the whole incumbrance in exoneration, so far as possible, of the part transferred.37 And this equity as between the parties to the transfer will usually be enforced upon a foreclosure proceeding by a decree requiring the part retained to be applied in satisfaction of the mortgage debt before the part transferred is so applied.38 And if, in such case, the transferee pays the mortgage debt, he is entitled to contribution from the mortgagor to the extent of the value of the land retained, and, when this exceeds the debt, to complete exoneration,39 while if the mortgagor pays the amount of the quently pointed out, is objectionable as enabling the mortgagor, who has transferred a part of the land and so established an equity in the transferee to have the residue first applied on the mortgage, to divest this equity at pleasure by transferring such residue to another.
36. Ante, Sec. 622.
37. Rann v. Reynolds, 11 Cal. 14; Cumming v. cumming, 3 Ga. 460; Iglehart v. Crain. 42 111. 267; Erlinger v. Boul, 7 111. App. 40; Cooper v. Bigley, 13 Mich. 474; Brown v. Simons, 44 N. H. 475; Clowes v. Dickinson, 5 Johns. Ch. (N. Y.) 295; Commercial Bank v. Western Reserve Bank, 11 Ohio 444; Taylor v. Maris, 5 Rawle (Pa.) 56; Carpenter v. Koons, 20 Pa. 222.
38. Savings Bank v. Cresswell, 100 U. S. 630, 25 L. Ed. 713; How-ser v. Cruikshank, 122 Ala. 256, 82 Am. St. Rep. 76, 25 So. 206; Mack v. Shafer, 135 Cal. 113, 67 Pac. 40; Cumming v. Cumming, 3 Ga. 460; Boone v. Clark, 129 111.
466, 5 L. R. A. 276, 21 N. E. 850; Mickley v. Tomlinson, 79 Iowa, 383, 41 N. W. 311, 44 N. W. 684; Greene v. Healy, 70 Kan. 173, 78 Pac. 416; Hopper v. Smyser, 90 Md. 363, 45 Atl. 206; Bradfield v. Sewall, 58 Neb. 637, 79 N. W. 615; Poster v. Rahway Union Bank, 34 N. J. Eq. 48; Solicitors' Loan & Trust Co. v. Washington & I. R. Co., 11 Wash. 684, 40 Pac. 344; Perkins v. McAuliffe, 105 Wis. 582, 81 N. W. 645.
39. Aldrich v. Cooper, 2 White & Tudor, Lead Cas. Eq. Amer, notes, p. 291; Cumming v. Cumming, 3 Ga. 460; Loch v. Ful-ford, 52 111. 166; Windsor v. Evans, 72 Iowa, 692, 34 N. W. 481; Caruthers v. Hall, 10 Mich. 40; mortgage', since this is merely a compliance with his legal obligation, he cannot demand any contribution from his transferee.40
If, after having- thus conveyed part of the mort-gaged land, the mortgagor conveys the part retained to another person, such person is regarded as standing in his place, and, as against the prior transferee, the land last transferred is liable for the mortgage del it. If, instead of transferring- the whole of the land retained by him, the mortgagor transfers a part thereof only, the part still retained by him is equitably first liable for the whole debt, and, if that is insufficient, then the part last transferred should be charged for the deficiency, rather than that first transferred, since the second transferee took the land in the same condition in which it was in the hands of the grantor. Thus, the different parts of the mortgaged land are liable "in the inverse order of alienation."41 In two or three states only has a contrary view been adopted, to the effect that, as between successive transferees of different parts, each part is liable in proportion to the value of that part,42 a view which, as has been freEngle v. Haines, 5 N. J. Eq. 186, 43 Am. Dec. 624; Clowes v. Dickenson, 5 Johns. Ch. (N. Y.) 235.